w w w . L a w y e r S e r v i c e s . i n


Theresia J.Parmar v/s Sanjay Prasad

    R/S.C.A. Nos. 17623 of 2018, 1652 of 2019, 1706 of 2019, 2914 of 2019, 3372 of 2019, 3373 of 2019, 5832 of 2019, 7001 of 2021, 6380 of 2019, 6484 of 2019, 6459 of 2019, 7060 of 2019, 8438 of 2019, 10522 of 2019, 12026 of 2013, 13266 of 2013, 11448 of 2019, 13279 of 2019, C.A. No.1 of 2020 in R/S.C.A. No.13279 of 2019, R/S.C.A. No.13280 of 2019, C.A. No.1 of 2020 in R/S.C.A. No.13280 of 2019, R/S.C.A. Nos.12840 of 2019, 13097 of 2019, 13729 of 2019, 13711 of 2019, 18637 of 2017, 18210 of 2019, 18
    Decided On, 10 March 2022
    At, High Court of Gujarat At Ahmedabad
    By, THE HONOURABLE MR. JUSTICE BIREN VAISHNAV
    For the Petitioner: P.J. Mehta (467), Advocate. For the Respondent: Nidhi Vyas, AGP, D.G. Chauhan (218) & Ronak D. Chauhan (7709), Advocates.


Judgment Text
1. Rule returnable forthwith. Mr. D.G. Chauhan, learned Counsel waives service of notice of Rule for the Respondent-University as well as Ms. Nidhi Vyas, learned Assistant Government Pleader waives service of notice of Rule for the Respondent-State.

2. With the consent of the learned Advocates appearing for the respective parties, the matters were taken up for final hearing on 22.2.2022.

3. In all these Petitions, under Article 226 of the Constitution of India, the Petitioners seek the benefit of regularization of their services with the Respondent University in compliance of the decision of the Supreme Court in the case of Gujarat Agricultural University v. Rathod Labhu Bechar and others, 2001 (1) LLN 767 (SC): 2001 (3) SCC 574.

4. For and on behalf of the Petitioners, learned Counsels Mr. Paresh J. Mehta, Ms. Sangeeta Pahwa and Mr. Gunvant B. Shah have made their arguments.

5. Mr. D.G. Chauhan, learned Counsel appeared for the Respondent No.2-University while Ms. Nidhi Vyas, learned AGP appeared for Respondent No.1-State.

6. Briefly stated, the facts in all these Petitions are that the Petitioners initially had been engaged as Daily Wagers on an ad hoc basis with the Respondent-University. It is their case that pursuant to a decision of the Hon'ble Supreme Court in the case of Rathod Labhu Bechar (supra), the Petitioners were given the benefit of Clause 2 of the Scheme so framed in accordance with the directions of the Supreme Court, whereas, in full compliance of the decision, the services of the Petitioners should have been regularized on completion of ten years of service from the date of their joining in their respective cadres.

7. Briefly again, the stand of the Respondent i.e. University and the State is that pursuant to the decision in the case of Rathod Labhu Bechar (Supra), the State Government had taken a decision and sanctioned 890 posts on which such daily wagers were regularized. Thereafter, the posts were abolished. The Petitioners were therefore not in a position to be regularized and, therefore, were granted the benefit of fixed pay under Clause 2 of the regularization scheme with effect from 1.1.2001.

8. Mr. P.J. Mehta, learned Counsel for the Petitioners would submit that the University is adopting a policy of pick and choose. He would submit that it was not the case that after the decision in the case Secretary, State of Karnataka and others v. Umadevi, 2006 (3) LLN 78 (SC): 2006 (4) SCC 1, the scheme of regularization came to an end. The Petitioners ought to have been regularized in service and, therefore, he would submit that the action of the University in not regularizing the services of the Petitioners in the scheme framed by the Supreme Court was bad. Mr. Mehta would submit that in the decision of Rathod Labhu Bechar (supra), it was categorically observed in Paragraph Nos.30, 32 & 33 that all eligible daily wagers, who had completed more than ten years with 240 days of presence in each year should be regularized. Mr. Mehta, in course of his submissions relied upon the decision in the case of Narendra Kumar Tiwari and others v. State of Jharkhand and others, 2019 (1) LLN 310 (SC): AIR 2018 SC 3589. He would submit that denial of benefits of regularization tantamounts to exploitation of Employees. He further relied on Bhartiya Seva Samaj Trust Tr. Pres. and another v. Yogeshbhai Ambalal Patel and another, 2012 (4) LLN 513 (SC): 2012 (9) SCC 310. In support of his submission, reliance was also placed on the decision in the case of State of Karnataka v. M.L. Kesari, 2010 (9) SCC 247. He would submit that the issue also is covered by a decision of the Division Bench in Letters Patent Appeal No.1223 of 2018, dated 27.9.2018 in the case of Vice Chancellor, Anand Agriculture University, Anand v. Pujabhai Gagajibhai Boriya and others.

8.1. Mr. Mehta would submit that there is enough material on record to show that the action of the Respondent-University reeks / smacks of arbitrariness and violates Articles 14 & 21 of the Constitution of India.

8.2. Mr. Mehta would submit that the stand of the University that the appointments of the Petitioners were not in accordance with law or were illegal appointments is bad. Together with an additional affidavit and rejoinder to the Petitions, Mr. Mehta has placed a decision of the State, dated 13.8.2002 and submitted that the stand of the State of creating 890 posts and, then, submitting that the policy of abolishing them due to retirement and death and not continuing the benefit on such posts on they falling vacant is in violation of the order of the Apex Court. He would submit that an advertisement for recruitment of Junior Clerks issued on 22.12.2018 itself proves that posts with the University were vacant. He would produce orders of regularization of several contemporaries and submit that the policy of pick and choose cannot be adopted.

8.3. Mr. Mehta would also show that the action of abolishing post of the University and then of the State Government holding that the case of the Petitioners did not deserve regularization also violated the constitutional guarantee.

8.4. Mr. Mehta would rely on the decision, dated 26.7.2021 passed in Civil Appeal No.4443 of 2021 of the Hon'ble Supreme Court in the case of Vice Chancellor, Anand Agriculture University v. Kanubhai Nanubhai Vagehla and another, 2021 (4) LLN 410 (SC), wherein, the stand which the present Respondents have taken, has been deprecated by the Supreme Court itself. He would demonstrate by placing orders of persons junior to the Petitioners of having regularized namely; one Mr. Jayantibhai Parmar. He would, therefore, submit that the case of the Petitioners deserves to be considered for regularization. Reliance is also placed on a decision of this Court in Special Civil Application No.276 of 2019 in the case of the Petitioner of Special Civil Application No.17623 of 2018 wherein this Court had in Paras 23 & 24 discredited the submissions made by the learned Counsel for the Respondent-University.

9. Ms. Sangeeta Pahwa, learned Counsel for the Petitioner of Special Civil Application No.13266 of 2019 would submit that in accordance with the decision in the case of Rathod Labhu Bechar (supra), the scheme for regularization categorically provided that the Daily Wagers, who could not be regularized, shall be treated as monthly rated Employees. However, Clause 2 of the Scheme categorically stated that he would be paid such amount till their services are regularized in accordance with Clause 1. She would, therefore, submit that the right to regularization enured to the Petitioner from the Judgment in the case of Rathod Labhu Bechar (supra). She would submit that Para 33 of the decision clearly stated that the scheme enures till all daily rated regular Employees should be given the benefit of regularization. In her case, she also would produce the order, which categorically submitted that the Petitioner would continue to get the minimum of the regular Scale till the order of regularization is given in the benefit of the Petitioner. This in the submission of Mrs. Pahwa would indicate that the stand of the Respondent-University that once the posts are abolished, the scheme would terminate as invalid.

10. Mr. Gunvant B. Shah, learned Counsel in Special Civil Application No.18637 of 2019 would also make submissions on similar lines and submit that the Petitioners of this Petition, who had served for 32 years are entitled to the benefit of the decision in the case of Rathod Labhu Bechar (supra). The Petitioners retired on 31.3.2021 despite which no Retirement benefits have been given.

11. Mr. D.G. Chauhan, learned Counsel for the Respondent-Gujarat Agricultural University would take the Court to one of the affidavits in reply filed in these Petitions and submit that the Petitioners were engaged as Daily Wagers purely on an ad hoc basis. They have been given the benefits of Clause 2 of the Regularization Scheme with retrospective effect in accordance with the directions issued by the Supreme Court in the case of Rathod Labhu Bechar (supra).

11.1. Mr. Chauhan would further submit that in accordance with the decision of the Hon'ble Supreme Court, the State Government created 890 posts to absorb daily wagers working in the University. On 13.8.2002, after regularizing the services of all 890 daily wagers, the State Government had taken a decision to abolish all 890 posts sanctioned by the State Government. This decision has not been challenged by the Petitioners. On 16.4.2013, 51 supernumerary posts were created by the State and the remaining 51 daily wagers were given the benefit of the Scheme. He would submit that there is gross delay in filing Special Civil Application by the Petitioners especially the Petitioner of Special Civil Application No.17623 of 2018. Several decisions have been relied upon by Mr. Chauhan to submit that the petition is grossly delayed and is liable to be dismissed only on the ground of delay. In the affidavit in reply, he has relied on decisions, which are as under:

(i) Shiba Shankar Mohapatra v. State of Orissa, 2010 (1) LLN 115 (SC): 2010 (12) SCC 471,

(ii) State of Orissa v. Mamata Mohanty, 2011 (3) SCC 436,

(iii) State of Uttar Pradesh v. Arvind Kumar Srivastava, 2015 (1) SCC 347 and

(iv) State of Jammu and Kashmir v. R.K. Zalpuri and others, 2015 (15) SCC 602.

11.2. Mr. Chauhan would further submit that the University is a body corporate, having its own Recruitment Rules. All regular appointments are to be made in accordance with the Recruitment Rules after full compliance with Articles 14 & 16 of the Constitution of India.

11.3. Mr. Chauhan would further submit that no Mandamus can be issued unless there is an enforceable legal / Constitutional right / Statutory right in favour of the Petitioners. As far as Special Civil Application No.17623 of 2018 is concerned, he would submit that the Petition is filed against one Shri Sanjay Prasad and N.C. Patel, who are not State but private Respondents. In support of the maintainability of the Petition, Mr. Chauhan would also rely on the following decisions:

(1) Dr. Rai Shivendra Bahadur v. Governing Body of the Nalanda College, Bihar, AIR 1962 SC 1210 (Paragraph No.5 thereof)

(2) Secretary, State of Karnataka v. Umadevi, 2006 (3) LLN 78 (SC): 2006 (4) SCC 1 (Paragraph No.52 thereof)

(3) Union of India v. Arulmozhi Iniarasu, 2011 (4) LLN 494 (SC): 2011 (7) SCC 397 (Paragraph No.26 thereof)

11.4. With regard to the jurisdiction of the High Court in case of regularization, he would submit that the High Court in exercise of powers under Article 226 of the Constitution of India will not issue the directions for regularization / absorption / permanency. Reliance is placed on Paragraph No.12 of the decision in the case of State of Rajasthan v. Daya Lal, 2011 (1) LLN 684 (SC): 2011 (2) SCC 429. He would then submit that the Ptitioners are Daily Wagers and did not hold any posts. Appointments are de hors the Recruitment Rules and, therefore they have no right to claim for regularization. As far as the decisions that the Daily Wagers are not entitled for regularization, he would rely on the following decisions:

(i) Secretary, State of Karnataka v. Umadevi, 2006 (3) LLN 78 (SC): 2006 (4) SCC 1;

(ii) National Fertilizers Ltd. and others v. Somvir Singh, 2006 (5) SCC 493;

(iii) Union of India v. Pushpa Rani, 2009 (1) LLN 10 (SC): 2008 (9) SCC 242 (Paragraph No.37 thereof);

(iv) Gujarat Agricultural University v. Rathod Labhu Bechar, 2001 (1) LLN 767 (SC): 2001 (3) SCC 574 (Para 10 thereof);

(v) State of Rajasthan and others v. Daya Lal and others, 2011 (1) LLN 684 (SC): 2011 (2) SCC 429;

(vi) Nand Kumar v. State of Bihar, 2014 (5) SCC 300;

(vii) Amreli Municipality v. Gujarat Pradesh Municipal Union, 2004 (4) LLN 564 (Guj): 2004 (2) GLH 692;

(viii) Union of India v. Ilmo Devi, 2021 SCC Online SC 899.

He would submit that there is no sanctioned vacant post and, therefore, the Petitioners cannot be regularized.

12. Ms. Nidhi Vyas, learned Assistant Government Pleader appearing for the State would draw the attention of the Court to the affidavit-in-reply filed on behalf of State and submit that as per Scheme approved by the Apex Court, all Daily Wagers, who have completed ten years of continuous service with a minimum of 240 days were to be regularized as regular Employees w.e.f. 1.1.2000.

13. The State Government sought details from the University. The University vide Letter, dated 27.6.2001 informed the State Government that out of 5100 daily wagers, 877 daily wagers were eligible for regularization. The University requested to create 877 new sanctioned posts, which was subsequently revised by the University with a request to create 890 posts. Accordingly, the State Government created 890 posts for the aforesaid daily wagers and instead of regularizing them in a phased manner, regularized them at one go. A Government Resolution was passed on 21.9.2012 forming a Committee under the Chairmanship of the Deputy Secretary on 16.4.2013, 51 other Daily Wagers were regularized with effect from 1.4.2002. In all therefore 941 daily wagers have been regularized in accordance with the Scheme. The remaining daily wagers, are given the benefit of Clause 2 and, therefore, there is no adverse inference that would be drawn that the State had diluted the directions given by the Supreme Court.

14. Having considered the submissions made by the learned Advocates for the respective parties, what needs to be seen are the decisions of the Supreme Court in the case of Rathod Labhu Bechar (supra).

15. Before the Hon'ble Supreme Court, the Appeals were filed by the Agricultural University arising out of industrial disputes referred under Section 10(1)(c) of the Industrial Disputes Act, 1947. The reference was whether the Employees listed in the Schedule, who had completed more than 240 days, were entitled to the benefit of permanency. The Employees were daily rated Employees working with the University engaged due to exigencies of work, without considering relevant factors about their Educational Qualifications, age limits and other requirements for the purposes of regular employment under the Recruitment Rules. The stand of the University was that their appointments were contrary to the Recruitment Rules, not on the sanctioned posts, their appointments were irregular and not in accordance with the Rules and, therefore, they were not entitled for the benefits of regularization.

16. In Paragraph No.10 of the decision of Rathod Labhu Bechar (supra), a proposed scheme of regularization was framed. Paragraph No.10 reads as under:

"We heard learned Counsel for the parties at length and considered the objections of the Respondents with respect to the proposed scheme for the regularization of daily rated Workers. The proposed scheme is reproduced below:

Scheme for Regularization of Daily Rated Labours of the Gujarat Agricultural University.

1. Daily-wager Workers, whether skilled, semi-skilled or unskilled, who have completed 10 years or more of continuous service with a minimum of 240 days in each calendar year as on 31.12.1999, shall be regularized as regular Employees with effect from 1.1.2000 and shall be put in the time scale of pay applicable to the corresponding lowest grade in the University subject to the following terms and conditions:

(a) The daily rated Employees shall be eligible and must possess the prescribed qualifications for the post at the time of their appointment on daily rated basis.

(b) Daily-wager Employees shall be regularized in a phased manner to the extent of available regular sanctioned posts/vacancies on the date of regularization and on the basis of seniority-cumsuitability including physical fitness.

(c) The work and conduct of such Employees should have been of over all good category and satisfactory and no disciplinary proceedings are pending against them.

(d) The regularization will be against the posts/ vacancies of the relevant categories only.

2. Daily Workers, whether skilled semi- skilled or unskilled, who have completed 10 years of continuous service with a minimum of 240 days in each calendar year as on 31.12.1999 but could not be regularized shall be treated as monthly rated Employees w.e.f. 1.1.2000 in the fixed pay without allowances as per the following formula:

Prepared by University:

Daily rate Fixed pay = prescribed by 26+ Rs.500 the Government from time to time for skilled, semiskilled, unskilled Workers as the case may be They would be entitled to an annual increment of Rs. 15, Rs. 20 & Rs. 25 respectively for unskilled, semiskilled and skilled Workers till their services are regularized as per Para-1.

3. Daily-wager whether skilled, semi-skilled or unskilled, who have not completed 10 years of service with a minimum of 240 days in each calendar year shall be paid daily wage at the rates prescribed by the Government of Gujarat from time to time for daily wager Employees falling in Class III and Class IV.

4. The seniority of the daily rates Class III and IV Employees so regularized vis--vis Class III & IV Employees appointed on regular basis shall be determined w.e.f. 1.1.2000. The inter se seniority of such daily rate Class III & IV Employees shall be determined in accordance with the date of joining the post on daily rated basis. If the date of joining the post(s), on daily rated basis by such daily rated Employees was the same, then the elder Employee shall rank senior to an Employee younger in age. If the date of joining of the directly recruited regular Employees and the date of regularized Employees as per this scheme is the same, the direct recruit shall be senior.“

17. Reading Paragraph No.19 onwards of Rathod Labhu Bechar (supra), what is apparent is that the Supreme Court framed the Scheme assessing the Recruitment Rules, which were placed on record. After the decisions referred to therein in Paras 28 to 32, the Supreme Court observed as under:

“28. Thus in view of their long experience on the fact of this case and for the concerned posts the prescribed qualification, if any, should not come in the way of their regularisation. Clause 1(b) provides for the regularisation of daily wagers in a phased manner to the extent of available sanctioned post.

29. The decision to absorb some of the Employees at one point of time or in a phased manner depends on facts and circumstances of each case. Where very large number of Workers are required to be absorbed, this Court accepted the formula, in the past to absorb such Employees under a Scheme in a phased manner. This is done to work it out within its financial means. Every liberty and entitlement is always subject to such financial limits. But in considering such absorption, the financial means have to be stretched to the maximum but should not be a defence with motive to disentitle the claim of the Workmen. The grant of this phased absorption thus is in itself a mechanism under this principle. But as we have said this mechanism is not a tool to misuse for taking away any legitimate right of any Worker. The Court has to be cautious in exercising its discretion. On the one hand it has to keep the interest of the Workers alive and on the other to see that Employer does not become spineless for the lack of funds eroding the very Workers interest. In the present case admittedly in the first phase in terms of Clause 1, one block of daily wage worker is to be regularised for which the posts are being created. We want to make it clear, in creating posts Government shall see maximum posts are created to absorb maximum such Workers who have completed ten years as on 31st December, 2000, as these Workers have more than eligible claim. Thereafter, even reassessment for additional posts, about which we are referring should be done in the same perspective. In other words there may still be number of Workers who may still not be covered for absorption under the first phase of Clause 1 due to initial non-availability of posts though working for a long number of years. We are saying so because Clause 1(d) is silent, what number of posts Government is being created initially for the first phase of absorption.

30. According to the State counter if absorption is made from 1.1.1993 of all those who have completed ten years of service as per Tribunal Order, the payment towards arrears would be to the tune of 15 crores. Since in the proposed scheme, absorption is from 1st January, 2001, the State has already gained much more than this arrears of more than 15 crores. In this light and in the absence of details being placed before us, we are leaving the extent of creation of the posts on the State Government. We hope and trust, the Government, who is the guardian of the people and is obliged under Article 38 of the Constitution, to secure a social order for the promotions of welfare of the people, to eliminate inequalities in status, will endeavour to give maximum posts even at the first stage of absorption, and do the same in the same spirit for creating additional posts after enquiry as we are indicating hereunder. It is necessary that the State Government to set up an enquiry to find what further number of additional posts are required for regularising such other daily rated Workers, and after assessing it, to create such additional posts for their absorption. This exercise should be done by the State Government within a period of six months. The submission on behalf of the Respondent is that those who are not regularised and are continuously working for 10 or more years with minimum of 240 days in each calendar year, they should be paid minimum Pay Scale as admissible to an incumbent regularised on similar post doing similar work instead of minimum wages as prescribed by the Government. The dispute thus is, whether such Workers to be paid minimum daily wage as Government prescribes as per the scheme or pay them the minimum Pay Scale admissible to such regularised Worker without increment and other benefit. This Court in one set of decisions have said to regularise them in one block and pay them the same minimum pay scale as admissible to a regular Employee as in; Surinder Singh and another v. Engineer-in-Chief, C.P.W.D. and others, 1986 (1) SCC 639, U.P. Income Tax Department Contingent Paid Staff Welfare Association v. Union of India and others, 1987 Supp. SCC 658, State of Punjab and others v. Devinder Singh and others, 1998 (9) SCC 595, Chief Conservator of Forests and another v. Jagannath Maruti Kondhare and others, 1996 (2) SCC 293 and in other cases to absorb in a phased manner under a scheme, which depends on the facts of each case. In Mool Raj Upadhyaya v. State of H.P. and others, (supra), this Court approved a scheme under which the daily wage Workers whether skilled or unskilled, who have not completed 10 years of service was to be paid daily wage at the rates prescribed by the Government of H.P. from time to time for daily wage Employees falling under Class III & IV till they are appointed regularly. Strong reliance is placed on behalf of the University on this case and also, looking to the fact that it has no impressive source of its own, being an Agricultural University, depending on the State fund, we hold they should be paid minimum wages as prescribed by the Government from time to time as proposed under the scheme. We approve both Clauses 2 & 3 on the facts and circumstances of this case. In fact, in seeking minimum pay scale to such daily rated Workers as admissible to a regular Employee is based on the principle of equal pay for equal work. It is pertinent to refer, in this case the observation of the High Court:

"… Workmen are not claiming equal pay for equal work but they are claiming permanent status as Class IV Employees as they are working and have gained more than sufficient experience in their work…."

31. Ghaziabad Development Authority and others v. Vikram Chaudhary and others, 1995 (5) SCC 210, this was a case of temporary daily wage Employees claiming parity with regular Employees. It was held, in the absence of availability of regular post for appointment, such a claim is not sustainable. However, it was held that they should be given minimum wages under the statute if any, or the prevailing wages in the locality. To the same effect is Basudev Pati v. State of Orissa and another, 1997 (3) SCC 632.

32. State of Haryana and others v. Jasmer Singh and others, 1996 (11) SCC 77, this was a case where Malicum-Chowkidars/Pump Operators claimed parity in employment based on the anvil of equal pay for equal work, who were daily wagers. It was held, they are not entitled to such parity with regular Workmen. They can get only the minimum wages."

18. Reading the above observations of Paragraphs No.10 & 28 to 32 of the Supreme Court of Rathod Labhu Bechar (supra), what the Court observed is that the daily rated Workers were working for long number of years without any Complaint. That itself is a ground for relaxation of the eligibility condition. Clause-1(A) of the Scheme therefore was modified to that effect. The Supreme Court categorically observed that they want to see that the State Government shall create maximum posts to absorb the Workers in ten years. The defence of the State as well as the University that scheme comes to an end on the decision of the case of Umadevi (supra) is misconceived. It was categorically observed in the Judgment that the scheme shall continue till the daily wagers are regularized. That is evident from the observations of the decision of the Supreme Court. Paragraph No.35 of the decision categorically submits that this exercise is to be undertaken and they are sure as per the Supreme Court observation no slackness would be observed. Paragraph No.35 of the decision Rathod Labhu Bechar (supra) reads as under:

"35. In the present case after absorption of Employees under Clause 1, we have already directed, the State Government, what they have to do in coordination with the Appellant-University to assess and find additional regular posts required by the University. In doing so, they shall keep in mind the continuous work which the Workers are doing for long number of years and after fixing the number it should further create such additional posts as necessary and absorb them. This exercise to be undertaken, as aforesaid, within six months. So for this reason we would not like to disturb the proposed scheme except to the extent we have observed above. We are sure no slackness would be exercised both by the appellant and the State in completing this exercise within the said period. Apart from what we have observed, we do not find any infirmity in the scheme."

19. In light of these categorical findings and observations of the Supreme Court the scheme enures. It is not open for the State as well as Agricultural University then to submit that after the decision of Umadevi (supra), the scheme was extinguished. Even in accordance with the decision of the Supreme Court in the case of Bhartiya Seva Samaj v. Yogesh Ambalal Patel (supra) cannot be now said that the appointments of the Petitioners were not in accordance with the Recruitment Rules.

20. Even in Letters Patent Appeal No.1223 of 2018 in the case of Pujabhai Gagajibhai Boriya (supra), the arguments canvassed by the University were considered, inasmuch as the same arguments, which the learned Counsel for the University has advanced during the course of hearing have been considered extensively by the Division Bench. In Paragraph Nos.12, 13 & 14, the case of the University was that the case of Rathod Labhu Bechar (supra) stands overruled in view of the decision in the case of Umadevi (supra), which was referred to and the Court in Paragraph Nos.14 & 18 held as under:

"(14) The contention raised by the Appellant-University that the scheme approved by the Apex Court in the case of Gujarat Agricultural University (supra) stands "overruled" in view of the decision of the Constitution Bench of the Apex Court in the case of Umadevi (supra) requires strong deprecation as such the same amounts to misreading and misinterpretation of both the decisions. The said decision also figures in the array of the Judgments, which are considered by the Constitution Bench in Umadevi (supra). After Survey all the Judgments on the issue, in Paragraph No.54 the Constitution Bench has observed that:

"It is also clarified that those decisions, which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents."

Thus, the decision in the case of Gujarat Agricultural University (supra) approving the scheme of the regularization of the Appellant-University cannot be said to have been overruled by the decision of the Apex Court in the case of Umadevi (supra) in light of the observations made in Paragraph 54. If the justice is done by the Apex Court by approving the scheme, and The scheme is implemented in view of the Judgment; the same cannot be erased even if subsequently the error of law is corrected. Thus, the Appellant cannot disown their own scheme, which was approved by the Apex Court.

(15) In the case of Umadevi (Supra) in Paragraph No.53, it is observed that irregularly recruited Employees — Daily Rated Employees, who have worked for more than 10 years in service are to be regularized as a onetime measure. Subsequently, in a recent decision in the case of Narendra Kumar Tiwari v. State of Jharkhand, AIR 2018 SC 3589, the Apex Court has observed thus:

"The decision in the case of Umadevi (supra) was intended to put a full stop to the somewhat pernicious practice of irregularly or illegally appointing daily wage Workers and continuing with them indefinitely. In fact, in Paragraph 49 of the Report, it was pointed out that the Rule of law requires appointments to be made in a constitutional manner and the State cannot be permitted to perpetuate an irregularity in the matter of public employment, which would adversely affect those, who could be employed in terms of the constitutional scheme. It is for this reason that the concept of a onetime measure and a cutoff date was introduced in the hope and expectation that the State would cease and desist from making irregular or illegal appointments and instead make appointments on a regular basis."

The concept of a onetime measure was further explained by the Apex Court in the case reported in State of Karnataka and others v. M.L. Kesari, 2010 (9) SCC 247 in Paragraph Nos.9, 10 & 11, which read as follows:

"9. The term "onetime measure" has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3), each department or each instrumentality should undertake a onetime exercise and prepare a list of all casual, dailywage or ad hoc Employees, who have been working for more than ten years without the intervention of Courts and Tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.

10. At the end of six months from the date of decision in Umadevi (3), cases of several dailywage/ad hoc/casual Employees were still pending before Courts. Consequently, several departments and instrumentalities did not commence the onetime regularisation process. On the other hand, some government departments or instrumentalities undertook the onetime exercise excluding several Employees from consideration either on the ground that their cases were pending in Courts or due to sheer oversight. In such circumstances, the Employees, who were entitled to be considered in terms of Para 53 of the decision in Umadevi (3), will not lose their right to be considered for regularisation, merely because the onetime exercise was completed without considering their cases, or because the six month period mentioned in Para 53 of Umadevi (3) has expired. The onetime exercise should consider all dailywage/ad hoc/casual Employees, who had put in 10 years of continuous service as on 10.4.2006 without availing the protection of any Interim Orders of Courts or Tribunals. If any Employer had held the onetime exercise in terms of Para 53 of Umadevi (3), but did not consider the cases of some Employees who were entitled to the benefit of Para 53 of Umadevi (3), the Employer concerned should consider their cases also, as a continuation of the one time exercise. The onetime exercise will be concluded only when all the Employees, who are entitled to be considered in terms of Para 53 of Umadevi (3), are so considered.

11. The object behind the said direction in Para 53 of Umadevi (3) is twofold. First is to ensure that those, who have put in more than ten years of continuous service without the protection of any interim orders of Courts or Tribunals, before the date of decision in Umadevi (3) was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on dailywage/ ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons, who have worked for more than ten years as on 10.4.2006 decision in Umadevi (3)] without the protection of any Interim Order of any Court or Tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the Employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3) or that such exercise was undertaken only in regard to a limited few, will not disentitle such Employees, the right to be considered for regularisation in terms of the above directions in Umadevi (3) as a onetime measure."

The purpose and intent of the decision in the case of Umadevi (supra) was therefore, twofold, namely, firstly, to prevent irregular or illegal appointment in future and secondly, to confer a benefit on those, who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointment for almost a decade after the decision in the case of Umadevi (supra) is a clear indication that it believes that it was all right to continue with irregular appointment, and whenever required, terminate the services of the irregularly appointed Employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the Employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what in the cases of Umadevi (supra) and M.L. Kesari (supra) sought to avoid.

(16) Thus, the Appellant-University was under an obligation to regularize all the Employees, who had completed 10 years of service as on 10.4.2006 as a onetime measure, as directed by the Constitution Bench in the case of Umadevi (supra). Indubitably, the Respondent Employees have completed more than 10 years of service since they were all appointed between the year 1981 & 1984.

(17) As noted hereinabove, by the Order, dated 16.7.2001, the Respondents-Employees are already given the benefits of the said scheme by placing them in a monthly wage and it was observed that as and when, on the availability of the posts, they shall be granted the benefits of regularization and regular pay-scale. Thus, the Appellant having acted on the scheme, which was approved by the Apex Court cannot subsequently take a volte-face by saying that the said scheme is overruled in the case of Umadevi (supra). The Appellant-University cannot adopt discriminatory approach by not conferring the benefits to some of the Employees/daily wagers like the Respondents — original Petitioners by denying the benefits of permanency/regularization to them when the similarly situated Employees have already been given the benefits of regularization and regular pay-scale after completion of 10 years of continuous service. Subsequently also, pursuant to the Order, dated 17.10.2011 passed by this Court in the Writ Petitions as narrated hereinabove, similarly situated Employees to the Respondents-Employees have also been made permanent in view of the scheme approved by the Apex Court in the case of Gujarat Agricultural University (Supra). Learned Advocate Mr. Chauhan is unable to controvert the aforesaid Order, dated 17.10.2011.

(18) Thus, in the considered opinion of this Court, the stand taken by the Appellant in the Appeals is replete with impropriety and is strictly deprecated. The Appellant University was expected to implement the scheme in its true letter and spirit, once it was approved by the Apex Court in the case of Gujarat Agricultural University (supra).“

The Letters Patent Appeal No.1223 of 2018 and allied matters were dismissed on 27.9.2018 with the direction to the Appellant-University to grant the benefits of regularization from the date they have completed ten years of service.

21. Subsequently, even in the case of Kanubhai Nanubhai Vaghela (supra), the precise submissions of the Agricultural University were considered in context of the fact that it was brought to the notice of the Court that 5100 daily rated wagers were with the University; that 890 posts were created on which they were regularized. The Supreme Court, after hearing the Counsel for the University as is evident from the Judgment in Paras 11, 12 & 13 held that eligible daily wagers, who were eagerly waiting ought to be regularized because it was the right of the daily wagers to be regularized. Paragraph Nos.11 to 13 of such decision are reproduced hereunder:

“11. We have heard Mr. P.S. Patwalia, learned Senior Counsel for the University and Mr. Nachiketa Joshi, learned Counsel for the Respondents. The main contention of the University is that after the Judgment of this Court in Secretary, State of Karnataka and others v. Umadevi and others, the Respondents are not entitled for regularization as there are no sanctioned posts available. Another submission made on behalf of the Appellant is that the Judgment of this Court, dated 18.01.2001 in Gujarat Agricultural University (supra) does not survive after the Judgment of this Court in Uma Devi. It is no doubt true that in Umadevi's case, it has been held that regularization as a one-time measure can only be in respect of those, who were irregularly appointed and have worked for 10 years or more in duly sanctioned posts. However, in the instant case the Respondents are covered by the Judgment of this Court in Gujarat Agricultural University (supra). This Court approved the proposed scheme of the State of Gujarat and directed regularization of all those daily wagers, who were eligible in accordance with the scheme phasewise. The right to be regularized in accordance with the scheme continues till all the eligible dailywagers are absorbed. Creation of additional posts for absorption was staggered by this Court permitting the Appellant and the State of Gujarat to implement the scheme phase-wise. We are not impressed with the submissions made on behalf of the University that the judgment of this Court in Umadevi's case overruled the Judgment in Gujarat Agricultural University (supra). The Judgment of this Court in Gujarat Agricultural University (supra) inter partes has become final and is binding on the University. Even according to Para 54 of Uma Devi's case, any Judgment, which is contrary to the principles settled in Umadevi shall be denuded of status as precedent. This observation at Para 54 in Umadevi's case does not absolve the University of its duty to comply with the directions of this Court in Gujarat Agricultural University (supra).

12. It was brought to the notice of this Court by Mr. P.S. Patwalia, learned Senior Counsel for the University that 890 posts were created coterminous with the services of those daily wagers, who have been absorbed in those posts. He made a valiant effort to impress upon this Court that no further posts have been created and therefore, the remaining daily wagers cannot claim regularization of their services. Creation of 890 posts is by way of implementation of the directions given by this Court in Gujarat Agricultural University (supra) at the first stage. There is no ambiguity in the directions given by this Court in Gujarat Agricultural University (supra) that the obligation on the part of the University to implement the scheme by regularizing all the eligible daily wagers continued.

13. By an Order, dated 17.10.2011, persons similarly situated to the Respondents were absorbed by being given the benefit of regularization. The Division Bench of the High Court has taken note of the discriminatory approach of the University in conferring the benefit of regularization to some and not to all those daily wagers, who are eligible. There is no error in the Judgment of the High Court, which warrants interference by this Court. Eligible daily wagers in accordance with the scheme have been eagerly awaiting regularization as per the Judgment of this Court in Gujarat Agricultural University's case (supra). The right of the Respondents for regularization has been correctly recognized by the High Court.“

22. Even, this Court speaking through a Coordinate Bench in Special Civil Application No.276 of 2019 unequivocally observed that after a definite pronouncement with regard to the status of Rathod Labhu Bechar (supra), the argument of the University that the interpretation is made ineffective after the decision in the case of Umadevi (supra) cannot be upheld. The Court observed as under after extensively considering the Resolutions of the State Government. Relevant Paragraph Nos.9 to 26 of the decision, dated 29.10.2021 of 276 of 2019, are reproduced hereunder:

“9. It is submitted that in fact, after the pronouncement in the case of Umadevi, the Respondent-University has further extended the period during which the benefit ought to be given to the Workmen including the Petitioners. It is also submitted that the Respondent-University has communicated to the Joint Secretary — Ministry of Agriculture and Cooperation for compliance of the Judgment of Hon'ble High Court in the matter of S.C.A. No.7794 of 2010, 6926 of 2010 & 27205 of 2007, whereby this Court has directed the University to release the permanent service benefits to be extended to all these daily wagers on completion of ten years services in the said establishment and the same Judgment has been confirmed by Division Bench of this Court in L.P.A. No.1223 of 2018, 1225 of 2018 & 1226 of 2018 on 27.9.2018 by rejecting the University LPA with direction in Paragraph No.20 for compliance forthwith of the releasing benefit of permanent services to the Respondent daily wagers, which was approached by daily wagers for non-compliance through MCA No.885 of 2018 with 965 of 2018 & 966 of 2018 for contempt proceedings against the University, which is still pending, the aforesaid subject sanctioned has been asked by the University from the Secretarial, though the Respondent No.1 Vice Chancellor of University is empowered with sanction of board under Section 25 & 26 of GAU Act, 1969 and its statues in all recruitment and financial policy of their University. Thus, in light of case of M.T. Parekh v. State of Gujarat as well as full Courts Judgment of Gujarat High Court and Supreme Court Judgment as well as circular thereon about similarly situated Employees who are benefited by the precedent decided or derived by the High Court or Supreme Court should not approached again individually to the Courts for compliance to prevent wastage of time and multiplicity of proceedings and public money. Thus, the Petitioner No.1, who has completed more than 35 years as daily rated clerk has not been given benefits of Class-III time Pay Scale in violation of Catena of Judgments of Apex Court ignoring a fortiori claim of the Petitioner No.1, thus Respondents have committed serious administrative blunder as well as ex facie actionable wrong in compliance and release the benefits of permanent Class-III time Pay Scale to Petitioner Nos.1 to 4 in light of Labhu Bechar and Umadevi (supra) constantly continuously in fragrant violation throughout two decades, which is untolerable, mockery of justice and absolute unpardonable malice in law exercise of powers vested by Respondents in the matter of compliance comprehensive regularization scheme — 2001. Thus, the said approved Supreme Court approved daily wagers regularization scheme, 2001 become infructuous since beginning by malice in law exercise applied by the Respondents viz. not disclosing the list of time pay scale beneficiary, hence condition of Clause 3 is never applied for eligible daily wagers under the guise of no vacant post complete and fragrant violation of Apex Court direction for creating maximum permanent posts to absorb entire mass of deserving daily wagers for time pay scale benefit. Hence, the Petitioner Nos.1 to 4 have no alternative except preferring Writ Petition being Special Civil Application No.17623 of 2018 to 17630 of 2018 for compliance of Umadevi 2006 (4) SCC 1 along with L.P.A. No.1223 of 2018, dated 27.9.2018 for regularizing their services, which is fixed for hearing on 24.1.2018.

10. It is submitted that the Respondents have jointly started recruiting new persons by resorting recruitment process, whereas the Workmen, who have being in the establishment like the Petitioners, their cases are not being considered. It is lastly submitted that it is on account of non-compliance of the directions in case of Labhu Bechar (supra) that injustice is meted out to the Petitioners and though the Petitioners are eligible and entitled to all respects, the Petitioners have not been absorbed as regularly appointed candidates in the establishment of the Respondent-University.

11. As against this, learned Advocate for the Respondent-University states that the University is in complete compliance of the directions issued by the Apex Court. The Petitioners were engaged as Daily Wagers skilled Workers on purely ad hoc and temporary basis, but there was no recruitment process, which was followed, and therefore, their appointments can be termed to be illegal appointments. At the relevant, there were no sanctioned vacant post. However, in view of Clause II of the Regularization Scheme, 2001, the Petitioners are granted the benefits of fix pay. It is submitted that the Petitioner No.1 has retired upon attending the age of superannuation, whereas the Petitioner Nos.2 to 4 are receiving fixed pay Salary of Rs. 9220.40.

12. It is submitted that the Regularization Scheme of daily rated labourer of the erstwhile Gujarat Agricultural University was framed and was duly approved by the Apex Court reported in 2001 (3) SCC 574 (Labhu Bechar). It is submitted that under the Scheme, the Apex Court was pleased direct the State Government to create the posts for absorption of daily wagers. It is submitted that the regularization was to be made against sanctioned vacant posts on the basis of seniority only which was to be prepared as per Clause 4 of the Scheme. After sanctioned of Scheme by the Apex Court, the State Government had created/ sanctioned about 890 posts for absorption of daily wagers in two pay scale of Rs. 2550-3200 & Rs. 3050-4590. It is submitted that out of 890 posts, 241 sanctioned posts were allotted to Anand Agricultural University. It is relevant to point out that the erstwhile Gujarat Agricultural University had granted regularization under the Scheme to all 890 daily wagers on their respective posts on the basis of seniority only. It is submitted that the Petitioners have also been granted benefits of Clause-2 of the Scheme with retrospective effect, dated 1.1.2001.

13. It is submitted that the State Government, vide Order, dated 13.12.2002 directed the University to abolish all 890 posts in the eventuality on retirement/ death/resignation of the Employees etc. It is submitted that out of 890 sanctioned posts, 241 posts were allotted to Anand Agricultural University. It is further submitted that all 241 posts were filled in on regular basis on seniority basis and granted the benefits of regularization. It is further submitted that 43 daily wagers are granted the benefit of Clause-2 of the Regularization Scheme including the Petitioners on seniority basis. Out of 241 posts, 146 posts have been abolished on account of retirement/death/resignation of the Employees etc.

14. It is submitted that Regularization Scheme 2001 (3) SCC 574 has already been overruled by the Apex Court in the case of State of Karnataka v. Umadevi, reported in 2006 (4) SCC 1. Thus, regularization scheme does not exist.

15. It is submitted that the Petitioner Nos.2, 3 & 4 are 52, 53 & 54 years old respectively and are not eligible for the post in question. It is settled law that even selected candidates have no right to claim appointments. 2001 (10) SCC 237, 2007 (8) SCC 100 (Paragraph No.14) & 2020 (2) SCC 173 (para-78). Since, the Petitioners do not possess the requisite qualification, there is no question to keep 5 posts vacant for the Petitioners. I submit that age is also relevant factor/ qualification for making application for the post in question under the Recruitment Rules.

16. Heard learned Advocates for the respective parties and having perused the documents on record. It appears that the Petitioner No.1 T J Parmar has joined the Respondent No.1-University as Skilled Daily Wager Clerk on 5.12.1984 and regularized in fix Salary class with effect from 1.1.2001 by virtue of Order, dated 22.3.2004. The Petitioner No.2 R.M. Patel has joined the Respondent No.1-University as Skilled Daily Wager Clerk on 16.7.1990 and regularized in fix Salary class with effect from 1.1.2001 by virtue of Order, dated 29.6.2005. The Petitioner No.3 K.K. Chauhan has joined the Respondent No.1-University as Skilled Daily Wager Clerk on 8.9.1992 and regularized in fix Salary class with effect from 1.1.2003 by virtue of Order, dated 23.12.2005. The Petitioner No.4-B M Solanki has joined the Respondent No.1-University as Skilled Daily Wager Clerk on 4.4.1990 and regularized in fix Salary class with effect from 1.1.2005 by virtue of Order, dated 23.12.2005.

17. The Respondent No.1 University is Body established and constituted under the provisions of Section 3 of the Gujarat Agricultural University Act, 2004 for the State of Gujarat. There are four Agricultural Universities; (1) Sardar Krushinagar Dantiwada Agricultural University. (2) Junagadh Agricultural University. (3) Anand Agricultural University. (4) Navsari Agricultural University. They are Statutory Autonomous Body. They are engaged in the educational activities and imparting education in agriculture and allied science and humanities in the State of Gujarat. The State accords 100% grant to the Respondent University and that all expenses including the expenses for the purpose of payment of salaries and wages of the Employees of the University are being paid from the amount of grant received from the State Government from time to time. In short, the State Government is having overall control overall Universities.

18. The Respondent No.1 University being a grant-in-aid Institute is required to obtain prior sanction of the State Government for the purpose of recruitment/ appointment of the Employees of the University.

19. The State has passed resolution through Agriculture and Cooperative Department, dated 1.4.2002 on the basis of the decision of the Apex Court in case of Labhu Bechar (supra), wherein the resolution reads as under:

"After careful consideration Government is pleased to accept the proposal of Gujarat Agriculture University to create 890 posts in Gujarat Agriculture University to absorb the Workmen, who have completed 10 years of service with minimum 240 days in each calendar year as daily rated Workmen subject to following conditions. (i) Creation of posts of daily rated Workmen should be in the two pay-scale i.e. Rs. 2550-3200 & Rs. 3050-4590 as State Government had sanctioned above two pay scales only for daily rated Workmen. (ii) After creation of 890 posts of daily rated Workmen, it is necessary to take action to relieve remaining about 4210 (Four Thousand Two Hundred Ten) daily rated Workmen immediately. (iii) all the daily rated Workmen are appointed by GAU, without approval of State Government their pay shall not be recouped as State Government Grant."

20. In case of Labhu Bechar (supra), the Apex Court has examined the Scheme and has stated in Paragraph Nos.27, 30 & 31 as under:

"27. In the light of the aforesaid decisions we now proceed to examine the proposed scheme. Under Clause 1 it is proposed that all daily wage Workers, whether skilled, semi-skilled or unskilled, who have completed 10 years or more of continuous service with a minimum of 240 days in each calendar year as on 31st December, 1999 is to be regularised and be put in the time scale of pay applicable to the corresponding lowest grade in the University. However, the said regularisation is subject to some conditions. Under Clause 1(a) such Employee is eligible only if he possess the prescribed qualifications for the post at the time of their appointment. The strong objection has been raised to this eligibility Clause. The submission is, those working for a period of 10 or more years without any Complaint is by itself a sufficient requisite qualification and any other rider on the facts of this case would prejudice these Workers. We find merit in this submission. We have perused the qualifications referred in the aforesaid recruitment rules according to which, qualification for Peon is that he should study upto 8th std., for Operator-cum-Mechanic, should have Diploma in Mechanic having sufficient knowledge of vehicle repairing experience in automobiles or tractors Dealers workshop for two years, for Chowkidar, he must be literate and have good physique. Literate is not defined. For Plumber to have I.T.I. Certificate.

28…

29…

30. Thus in view of their long experience on the fact of this case and for the concerned posts the prescribed qualification, if any, should not come in the way of their regularisation. Clause 1(b) provides for the regularisation of daily wagers in a phased manner to the extent of available sanctioned post.

31. The decision to absorb some of the Employees at one point of time or in a phased manner depends on facts and circumstances of each case. Where very large number of Workers are required to be absorbed, this Court accepted the formula, in the past to absorb such Employees under a Scheme in a phased manner. This is done to work it out within its financial means. Every liberty and entitlement is always subject to such financial limits. But in considering such absorption, the financial means have to be stretched to the maximum but should not be a defence with motive to disentitle the claim of the Workmen. The grant of this phased absorption thus is in itself a mechanism under this principle. But as we have said this mechanism is not a tool to misuse for taking away any legitimate right of any Worker. The Court has to be cautious in exercising its discretion. On the one hand it has to keep the interest of the Workers alive and on the other to see that Employer does not become spineless for the lack of funds eroding the very Workers interest. In the present case admittedly in the first phase in terms of Clause 1, one block of daily wage Worker is to be regularised for which the posts are being created. We want to make it clear, in creating posts Government shall see maximum posts are created to absorb maximum such Workers who have completed ten years as on 31st December, 2000, as these Workers have more than eligible claim. Thereafter, even reassessment for additional posts, about which we are referring should be done in the same perspective. In other words there may still be number of Workers, who may still not be covered for absorption under the first phase of Clause 1 due to initial non-availability of posts though working for a long number of years. We are saying so because Clause 1(d) is silent, what number of posts Government is being created initially for the first phase of absorption.“

21. Ultimately, the Court has concluded as under:

“35. In the present case after absorption of Employees under Clause 1, we have already directed, the State Government what they have to do in coordination with the Appellant University to assess and find additional regular posts required by the University. In doing so, they shall keep in mind the continuous work, which the Workers are doing for long number of years and after fixing the number it should further create such additional posts as necessary and absorb them. This exercise to be undertaken, as aforesaid, within six months. So for this reason we would not like to disturb the proposed scheme except to the extent we have observed above. We are sure no slackness would be exercised both by the Appellant and the State in completing this exercise within the said period. Apart from what we have observed, we do not find any infirmity in the scheme.

36. Accordingly we approve the aforesaid scheme framed by the University and as approved by the State Government, subject to the modifications, which we have recorded above. In terms of the said modified scheme, the Judgment of the High Court stands modified. As Respondents/Workmen have suffered for a long duration of time it is appropriate that aforesaid scheme is implemented expeditiously at an early date. The first phase of absorption to be completed within three months. The Appeals are accordingly disposed of in the aforesaid terms. Costs on the parties.“

22. In a more recent decision of the same University, in case of Vice Chancellor Anand Agriculture University v. Kanubhai Nanubhai Vaghela, 2021 (0) AIJEL-SC 67532, the Court has taken into consideration the submissions made on behalf of University. The effect on the scheme approved by the Apex Court in case of Labhu Bechar (supra) after the pronouncement in case of Umadevi (supra), the Apex Court has held as under:

“11. We have heard Mr. P.S. Patwalia, learned Senior Counsel for the University and Mr. Nachiketa Joshi, learned Counsel for the Respondents. The main contention of the University is that after the Judgment of this Court in Secretary, State of Karnataka and others v. Umadevi and others, 2006 (4) SCC 1, the Respondents are not entitled for regularization as there are no sanctioned posts available. Another submission made on behalf of the appellant is that the Judgment of this Court, dated 18.1.2001 in Gujarat Agricultural University (supra) does not survive after the Judgment of this Court in Uma Devi. It is no doubt true that in Umadevi's case, it has been held that regularization as a one-time measure can only be in respect of those, who were irregularly appointed and have worked for 10 years or more in duly sanctioned posts. However, in the instant case the Respondents are covered by the judgment of this Court in Gujarat Agricultural University (supra). This Court approved the proposed scheme of the State of Gujarat and directed regularization of all those daily wagers, who were eligible in accordance with the scheme phase-wise. The right to be regularized in accordance with the scheme continues till all the eligible daily-wagers are absorbed. Creation of additional posts for absorption was staggered by this Court permitting the Appellant and the State of Gujarat to implement the scheme phase-wise. We are not impressed with the submissions made on behalf of the University that the Judgment of this Court in Umadevi's case overruled the Judgment in Gujarat Agricultural University (supra). The Judgment of this Court in Gujarat Agricultural University (supra) inter parties has become final and is binding on the University. Even according to Para 54 of Uma Devi's case, any Judgment, which is contrary to the principles settled in Umadevi shall be denuded of status as precedent. This observation at Para 54 in Umadevi's case does not absolve the University of its duty to comply with the directions of this Court in Gujarat Agricultural University (supra).

12. It was brought to the notice of this Court by Mr. P.S. Patwalia, learned Senior Counsel for the University that 890 posts were created coterminous with the services of those daily wagers, who have been absorbed in those posts. He made a valiant effort to impress upon this Court that no further posts have been created and therefore, the remaining daily wagers cannot claim regularization of their services. Creation of 890 posts is by way of implementation of the directions given by this Court in Gujarat Agricultural University (supra) at the first stage. There is no ambiguity in the directions given by this Court in Gujarat Agricultural University (supra) that the obligation on the part of the University to implement the scheme by regularizing all the eligible daily wagers continued.

13. By an Order, dated 17.10.2011, persons similarly situated to the Respondents were absorbed by being given the benefit of regularization. The Division Bench of the High Court has taken note of the discriminatory approach of the University in conferring the benefit of regularization to some and not to all those daily wagers, who are eligible. There is no error in the Judgment of the High Court, which warrants interference by this Court. Eligible daily wagers in accordance with the scheme have been eagerly awaiting regularization as per the Judgment of this Court in Gujarat Agricultural University's case (supra). The right of the Respondents for regularization has been correctly recognized by the High Court."

23. In view of aforesaid definite pronouncement with regard to the status of Labhu Bechar (supra), after the pronouncement of the Apex Court in case of Umadevi, the argument advanced on behalf of the Respondent-University and the interpretation that the decision of Labhu Bechar is made ineffective cannot be upheld.

24. The Court has taken into consideration the position admitted by the Respondent-University in affidavit to the extent of accepting the entitlement of the Petitioners under Clause (2) of the Scheme, but the Court finds no reason assigned by the Respondent-University to justify how the Petitioners can be precluded from being considered for benefit under the Scheme approved by the Apex Court, if factually the Petitioners are meting with the particulars in Clause (1) of the Scheme. Especially, when there is an averment on oath that the Respondent has resorted to pick and choose policy rather than implementing the Scheme in its true spirit.

25. The Court finds that there is nothing on record to indicate that in case of the Petitioners, any exercise to factually ascertain their eligibility, was undertaken and that they were found lacking or in any manner behind the other similarly situated Employees, who were absorbed treating them to be eligible under Clause(1) of the Scheme.

26. In view of the aforesaid reasoning, this Court is of the view that the case of each of the Petitioners is required to be taken into consideration for their entitlement to the benefit of the Scheme approved by the Apex Court in case of Labhu Bechar (supra), particularly for the benefits under Clause(1) of the Scheme. For this purpose, the Respondents are directed to carry out the factual examination of facts of individual Petitioner, including the Petitioner No.1, who has retired for the purpose of her entitlement while carrying out this exercise of factual assertion, the Petitioners will be given an opportunity of hearing especially to overcome the allegation of pick and choose policy of Respondent-University. Such exercise to be undertaken within a period of 3 (three) months from the date of receipt of Writ of this Court. The authority to decide and grant the benefit, if found eligible in all other respect within 3 (three) months thereafter."

23. Therefore, considering the aforesaid circumstances and the decisions of the Court including that of the Hon'ble Supreme Court, this Court is of the view that the case of the Petitioners is required to be taken into consideration for their entitlement to the benefit of the Scheme as approved by the Apex Court in the case of Labhu Bechar (supra) and benefits under Clause 1 of

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the Scheme i.e. the benefit of regularization on completion of ten years ought to be granted. The Respondents are directed to extend the benefits of Clause 1 of the Scheme framed by the Hon'ble Supreme Court in the case of Labhu Bechar (supra) within a period of three months from the date of receipt of copy of this order. In case of those Petitioners, who have retired, their exercise shall be carried out by calling such Petitioners after giving them an opportunity of hearing and benefits according to the scheme and consequential benefits be given within a period of three months thereafter. All these Petitions are therefore allowed. Rule is made absolute accordingly. Direct Service is permitted. No Costs. 24. Special Civil Application Nos.13279 of 2019 & 13280 of 2019 have been filed by the Employer — Junagadh Agricultural University challenging the awards of the Industrial Tribunal, dated 9.1.2019 & 5.2.2019 by which the Respondent Employees have been given the benefits of regularization and the benefits of notional pay have been extended to the Respondent Employees. Cross Petitions have been filed by the Employees namely; Special Civil Application Nos.13711 of 2019 & 13729 of 2019 inasmuch as only notional benefits have been granted. 25. In these Petitions, the stand of the University is that the direction to the Petitioner — University to treat the Respondent as permanent Employees from the date of the reference and to grant them grade pay, dearness allowance and other allowances is patently illegal and arbitrary. Identical submissions have been raised by Mr. Chauhan in these Petitions assailing the award of the Industrial Tribunal. 26. Mr. Paresh J. Mehta, learned Counsel on behalf of the Respondent — Employees in Cross Petitions challenging the award as far as denial of actual benefits from the date of the award also has raised similar arguments inasmuch as he would submit that the Scheme enured in favour of all Employees and the Tribunal therefore ought to have given the benefits from the actual and not from the date of reference. 27. Perusing the awards of the Industrial Tribunal would indicate that evidence has come on record as is discussed by the Industrial Tribunal that the Employees therein were working for over more than twenty five years. The Tribunal has drawn adverse inference in light of the decision of the Supreme Court and found that the Employees were working for more than 25 to 30 years and which was therefore Unfair Labour Practice. 28. Once identical awards were a subject matter of challenge and affirmed by the Supreme Court in the case of Labhu Bechar (supra), there is no reason why the benefits ought to be granted to the Employees who were before the Industrial Tribunal in these two Petitions. However, it is made clear that since the Employees were before the Tribunal and the Tribunal looking to the financial burden of the State only granted benefits on a notional basis, needs to be modified inasmuch as the Respondent Employees, who were before the Industrial Tribunal and or the beneficiaries of the award of the Industrial Tribunal, dated 9.1.2019 & 5.2.2019 should be considered on the same lines as the Petitioners of the aforesaid Petitions, which are being decided today by a Common CAV Judgment for extending the benefits of regularization in accordance with the decision of the Supreme Court in the case of Labhu Bechar (supra). 29. The awards of the Industrial Tribunal as far as granting the benefits on a notional basis is concerned, the same are modified accordingly. Therefore, Special Civil Application Nos.13729 of 2019 & 13711 of 2019 on behalf of the Employees are partly allowed. The Petitions of University namely; Special Civil Application Nos.13279 of 2019 & 13280 of 2019 are dismissed. Rule is answered accordingly. Direct Service is permitted. No Costs. 30. No orders of connected Civil Applications in view of allowing / dismissal of the main Petitions. S.C.A. No.18699 of 2021: 31. Rule returnable forthwith. Mr. D.G. Chaujan, learned Counsel waives service of notice of Rule for the Respondent No.1 — University as well as Ms. Nidhi Vyas, learned Assistant Government Pleader waives service of notice of Rule for the Respondent-State. 32. With the consent of the learned Advocates appearing for the respective parties, the matter was taken up for final hearing on 22.2.2022. 33. In this Petition, under Article 226 of the Constitution of India, the Petitioner has challenged the award of the Industrial Tribunal, dated 8.8.2021 by which the Petitioner has not been granted the benefit of the regularization of scheme as per the decision of the Hon'ble Supreme Court, dated 26.7.2021 passed in Civil Appeal No.4443 of 2021 of the Hon'ble Supreme Court in the case of Vice Chancellor, Anand Agriculture University v. Kanubhai Nanubhai Vagehla and another, 2021 (4) LLN 410 (SC). 34. Before the Labour Court, it was the case of the Petitioner that he was working as a Peon since 1.6.1984 and pursuant to the decision in the case of Labhu Bechar (supra), he was entitled to the benefits of regularization. The University filed a Written Statement disputing the stand of the Petitioner. The University denied that the Petitioner had been working continuously. He had been terminated in the year 1985. By an Award, dated 8.8.2007, the Labour Court directed reinstatement without back wages. He was reinstated thereafter. As per the Scheme, only those who completed 240 days from 2001 are entitled to the benefits. The Petitioner has not so completed 240 days and, therefore not entitled to the benefits. 35. The Industrial Tribunal after hearing the argument of the parties came to the conclusion that when the award of the Labour Court, dated 8.8.2007 is read, what was directed was reinstatement without back wages. The Petitioner was terminated in the year 1985. There was no order of directing reinstatement with continuity of service. Looking to the statement at Exhs.19 and 20, what is evident is that it is only after the year 2007 that he had completed 240 days and that from 1984 to 2007, he had not completed 240 days. Therefore, he is not entitled to the benefits of the Scheme. 36. Having perused the order of the Industrial Tribunal and the order of the Labour Court, dated 8.8.2007, apparent error appears to be on the face of the record when the Industrial Tribunal interpreted the order of the labour Court as not granting continuity of service. As held by the Hon'ble Supreme Court in the decisions of Nandkishore Shravan Ahirrao v. Kosan Industries (P) Ltd., 2020 (3) LLN 38 (SC): AIR 2020 SC 1776 and Gurpreet Singh v. State of Punjab and Haryana, 2002 (9) SCC 492, the view apparently is erroneous. The award of the Tribunal, dated 8.10.2021 passed in Reference (IT) No.2 of 2018 is quashed and set aside and the Petitioner be extended the benefits of the decision in the case of Labhu Bechar (supra) of regularizing his services as was granted to the similarly situated Employees like the Petitioner. 37. The Petition is allowed in above terms. Rule is made absolute to the aforesaid extent. Direct Service is permitted. No Costs.
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